Filed 10/21/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 208

State of North Dakota, Plaintiff and Appellee

v.

Christopher Lee Devine, Defendant and Appellant

No. 20200033

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Susan L. Bailey, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Reid A. Brady (argued), Assistant State’s Attorney, Ryan J. Younggren, 

Assistant State’s Attorney (on brief), and Sean Kraut (on brief), third-year law 

student, under the Rule on Limited Practice of Law by Law Students, Fargo, 

ND, for plaintiff and appellee.

Ashley K. Schell, Fargo, ND, for defendant and appellant.

Danny L. Herbel, Bismarck, ND, for amicus curiae North Dakota Association 

of Criminal Defense Lawyers.
1

State v. Devine

No. 20200033

Jensen, Chief Justice.

[¶1] Christopher Lee Devine appeals from a criminal judgment entered 

following his conditional guilty plea to criminal vehicular homicide, a class A 

felony, and two counts of criminal vehicular injury, class C felonies. Devine

argues the district court was required to suppress the results of the chemical 

blood test because he was provided with an incomplete implied consent 

advisory. We conclude the exclusionary rule previously codified within 

N.D.C.C. § 39-20-01(3)(b) did not apply to a test obtained pursuant to N.D.C.C. 

§ 39-20-01.1. We affirm.

I

[¶2] On March 23, 2019, officers responded to a motor vehicle accident 

involving two vehicles. Devine was identified as the driver of one of the 

vehicles. One of the passengers in the vehicle driven by Devine died due to 

injuries sustained in the accident, and two other passengers in the vehicle 

sustained injuries requiring medical treatment.

[¶3] Devine was transported from the scene of the accident to the hospital for 

medical treatment. Prior to initiating contact with Devine, law enforcement 

obtained a search warrant to obtain a blood sample from Devine. After law 

enforcement had secured the search warrant, Devine was read an implied 

consent advisory that omitted the portion of the advisory informing a driver

that refusal to submit to a urine or breath test is a crime punishable in the 

same manner as driving under the influence. The reading of the implied 

consent warning was preserved by an audio recording taken at the hospital.

[¶4] Devine moved to suppress the results of the chemical blood test based on 

an incomplete reading of the implied consent advisory. The parties stipulated 

that a transcript of the audio recording accurately reflected the reading of the 

implied consent advisory to Devine. The district court found the blood test 

results were admissible because law enforcement obtained a search warrant 

for a blood sample; it was unnecessary for the officer to seek Devine’s consent 
2

to testing after securing the warrant; and any deficiency in the reading was

therefore immaterial.

[¶5] Devine entered a conditional plea of guilty preserving his right to appeal 

the denial of his motion to suppress the blood test results. Devine argues the 

failure to provide him with a complete reading of the implied consent advisory 

requires the exclusion of the test results pursuant to the exclusionary rule 

previously codified within N.D.C.C. § 39-20-01(3)(b), and that a deficiency in 

the reading of the implied consent advisory could not be cured by law 

enforcement securing a warrant to take a blood sample from Devine.

II

[¶6] In reviewing a district court’s decision on a motion to suppress, this 

Court defers to the district court’s findings of fact and resolves conflicts in 

testimony in favor of affirmance. State v. Washington, 2020 ND 120, ¶ 7, 943 

N.W.2d 757. Questions of law are fully reviewable. Id.

[¶7] The State concedes that the omission of the part of the advisory that 

would have informed Devine that refusal to submit to a urine or breath test is 

a crime punishable in the same manner as driving under the influence was a 

substantive omission. Our cases applying the exclusionary rule previously 

found within N.D.C.C. § 39-20-01(3)(b) have required the exclusion of the test 

results when there was a substantive omission of a portion of the implied 

consent advisory. See, e.g., City of Bismarck v. Vagts, 2019 ND 224, ¶ 18, 932 

N.W.2d 523.

III

[¶8] The State argues that it was unnecessary to provide the implied consent 

advisory to Devine because law enforcement had already secured a warrant to 

collect blood from Devine. Alternatively, the State argues the blood sample was 

collected pursuant to N.D.C.C. § 39-20-01.1, and the exclusionary rule provided 

within N.D.C.C. § 39-20-01(3)(b) only applies to testing performed pursuant to 

N.D.C.C. § 39-20-01. Devine asserts that the search warrant did not vitiate the 
3

necessity of reading a complete implied consent advisory, a statutory 

protection provided within N.D.C.C. § 39-20-01(3).

[¶9] The Fourth Amendment has been interpreted by the United States 

Supreme Court to require law enforcement to secure a warrant in order to

require a blood sample. Birchfield v. North Dakota, 136 S.Ct. 2160, 2184 

(2016). When law enforcement fails to secure a warrant or demonstrate an 

exception allowing a warrantless search, the test results are subject to 

suppression in a criminal proceeding as an unreasonable search. Id. However, 

statutes may require more stringent protections than the federal constitution 

requires. See State v. Brown, 2018 ND 31, ¶ 9, 906 N.W.2d 120; see also Schoon 

v. N.D. Dep’t of Transp., 2018 ND 210, ¶ 11, 917 N.W.2d 199, (“Birchfield did 

not abrogate the admissibility requirements of N.D.C.C. § 39-20-01(3)”).

[¶10] Statutes are construed as a whole and harmonized to give meaning to 

related provisions. State v. Marcum, 2020 ND 50, ¶ 21, 939 N.W.2d 840 (citing

State v. Kuruc, 2014 ND 95, ¶ 32, 846 N.W.2d 314). This Court considers the 

context of the statutes and the purposes for which they are enacted. Id.

[¶11] At the time of Devine’s arrest, N.D.C.C. § 39-20-01(3) read as follows:

3. a. The law enforcement officer shall inform the individual charged that 

North Dakota law requires the individual to take a chemical test to 

determine whether the individual is under the influence of alcohol or 

drugs and that refusal of the individual to submit to a test directed by 

the law enforcement officer may result in a revocation of the individual’s 

driving privileges for a minimum of one hundred eighty days and up to 

three years. In addition, the law enforcement officer shall inform the 

individual refusal to take a breath or urine test is a crime punishable in 

the same manner as driving under the influence. If the officer requests 

the individual to submit to a blood test, the officer may not inform the 

individual of any criminal penalties until the officer has first secured a 

search warrant.
4

b. A test administered under this section is not admissible in any 

criminal or administrative proceeding to determine a violation of section 

39-08-01 or this chapter if the law enforcement officer fails to inform the 

individual charged as required under subdivision a.

N.D.C.C. § 39-20-01 (2017).

[¶12] If a driver of a vehicle is involved in a motor vehicle accident that causes 

death or serious bodily injury to another, N.D.C.C. § 39-20-01.1 applies:

[If] there is probable cause to believe that the driver is in violation 

of section 39-08-01, a law enforcement officer shall request the 

driver to submit to a chemical test or tests of the driver’s blood, 

breath, or urine to determine the alcohol concentration or the 

presence of other drugs or substances, or both.

N.D.C.C. § 39-20-01.1(1) & (2).

[¶13] Devine was the driver of a vehicle involved in a crash resulting in the 

death of another individual. Devine has not challenged the probable cause 

asserted by law enforcement in securing the warrant to obtain a blood sample 

from Devine. The circumstances of this case fall within the statutory scope of 

N.D.C.C. § 39-20-01.1 pertaining to the chemical testing of a driver involved in 

a crash resulting in serious bodily injury or death.

[¶14] The exclusionary rule previously codified within N.D.C.C. § 39-20-

01(3)(b) is expressly limited to testing “administered under this section . . . .” 

The statutory language is unambiguous, applies the exclusionary rule only to 

tests administered under N.D.C.C. § 39-20-01, and does not extend the 

exclusionary rule to tests administered under N.D.C.C. § 39-20-01.1.
5

IV

[¶15] The exclusionary rule previously provided within N.D.C.C. § 39-20-

01(3)(b) applied only to tests administered under N.D.C.C. § 39-20-01. Because 

the test at issue was administered under N.D.C.C. § 39-20-01.1, the 

exclusionary rule did not apply, and the district court did not err in denying 

Devine’s motion to suppress. Having concluded N.D.C.C. § 39-20-01.1 is 

determinative, it is unnecessary to address the other issues raised by Devine.

We affirm the judgment.

[¶16] Jon J. Jensen, C.J.

Daniel J. Crothers

Gerald W. VandeWalle

Jerod E. Tufte

Lisa Fair McEvers